SCA 123 OF 2007; Sekesu Sisapi Land Group (Inc) ILG No. 2121 v Turama Forest Industries Limited and Mr. Pepi Kimas, Secretary Of Department of Lands & Physical Planning and Mr. Raga Kavana, The Registrar of Titles, Department of Lands & Physical Planning (2008) SC976

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Citation: (2008) SC976
• Date: 17 November 2008
• Year: 2008

Full Title: SCA 123 OF 2007; Sekesu Sisapi Land Group (Inc) ILG No. 2121 v Turama Forest Industries Limited and Mr. Pepi Kimas, Secretary Of Department of Lands & Physical Planning and Mr. Raga Kavana, The Registrar of Titles, Department of Lands & Physical Planning (2008) SC976

Supreme Court: Hartshorn J

Judgment Delivered: 17 November 2008

PRACTICE AND PROCEDURE—APPEAL - Application for Leave to Appeal to the Supreme Court a National Court decision granting leave for Judicial Review—Application for a stay pending the hearing of the Appeal - Tests to be applied to the facts of each application for leave to appeal- Exercise of discretion by trial Judge based on incorrect submissions on law and mistaken facts - Arguable case established - sufficient cause shown—Leave to appeal granted

PRACTICE AND PROCEDURE—Staying a decision of National Court—Factors to consider - Interests of justice favour grant of stay of proceedings—stay order granted

Facts:

The appellant seeks leave to appeal and to stay a decision of the National Court. The decision granted the first respondent leave to apply for judicial review of a decision of the Secretary of the Department of Lands and Physical Planning to grant a State Lease to the appellant over land that the appellant contends is its customary land.

Held:

1. The appellant has established that it has an arguable case. Sufficient cause has been shown to interrupt the trial process by an appeal. Leave to appeal is granted.

2. The overall interests of justice favour the grant of a stay of proceedings pending the determination of the appeal.

Cases cited:

Kitogara Holdings v NCDIC [1988–89] PNGLR 346; Rafflin v Richard Gault Industries Pty Ltd [1998] PNGLR 394; Kuberi Epi v Turama Forest Industries Ltd (1998) N1761; Gary McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279; Matiabe Oberia v Chief Inspector Michael Charlie (2005) SC801; Wawoi Guavi Timber Company Ltd v. PNG Forest Authority & Ors (2007) SCA 22/07 Waigani, delivered 29th June 2007; Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853

17 November, 2008

1. HARTSHORN J: The appellant, Sekesu Sisapi Land Group (Inc) ILG No. 2121 (SSLG), seeks leave to appeal and to stay a decision of the National Court. The decision granted the first respondent, Turama Forests Industries Ltd (Turama), leave to apply for judicial review of a decision of the Secretary of the Department of Lands and Physical Planning to grant a State Lease to SSLG over land that SSLG contends is its customary land.

2. SSLG contends that the judge at first instance erred in granting leave to Turama to apply for judicial review:

a) because of the substantial delay by Turama in bringing the review proceedings and the consequent prejudice to SSLG and others,

b) in finding that Turama had sufficient standing to apply for judicial review,

c) in finding that Turama had an arguable case.

3. Further, SSLG contends that:

a) Turama misled the National Court during its application for leave for...